United States v. Nordbye

• Decision Date: 21 March 1935
• Docket Number: No. 383.,383.
• Citation: 75 F.2d 744
• Parties: UNITED STATES v. NORDBYE, Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

75 F.2d 744 (1935)

UNITED STATES v. NORDBYE, Judge.

No. 383.

Circuit Court of Appeals, Eighth Circuit.

February 12, 1935.

Rehearing Denied March 21, 1935.

W. A. Marin, of Minneapolis, Minn., for petitioner.

Stanley B. Houck, of Minneapolis, Minn., for respondent.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an original proceeding brought in the name of the United States as petitioner, against the respondent as judge of the United States District Court, for the District of Minnesota, seeking a writ of mandamus, directing and commanding respondent (1) to approve an appeal bond as filed in the lower court; (2) to allow and settle the bill of exceptions; (3) to strike out an order of said judge vacating an order allowing an appeal herein; (4) to do all things necessary and required of him by law to bring before this court an appeal attempted to be taken by petitioner.

It is disclosed by the record that two actions consolidated for purpose of trial, entitled respectively United States v. William J. Stevenson et al., and United States v. W. Yale Smiley et al., were tried before the respondent without a jury, and at the close of plaintiff's testimony, on October 18, 1933, the court, Judge Nordbye presiding, on motion of defendants, directed a verdict in their favor, and judgment was on said date entered in favor of defendants, pursuant to said verdict. The actions were prosecuted in the name of the United States by Harold R. Love, under authority of section 80, title 18 USCA, and sections 231 to 234, title 31 US CA, but Love was not named as a party to either of said actions. On December 12, 1933, defendants' attorney served notice of taxation of costs and entry of judgment therefor. The date for such taxation and entry was set for December 18, 1933, and the notice stated in part that the purpose of the motion was "to have the within bill of costs and disbursements taxed against Harold R. Love, the informer herein." Plaintiff made no appearance, and on December 18 or 19, 1933, the record being in some doubt as to which of said dates, judgment for costs was entered. Petition for appeal, together with assignments of error, was presented to Judge Nordbye, who signed the order allowing appeal and the citation on February 28, 1934.

On March 2, 1934, defendants served notice of motion to vacate and set aside the order allowing appeal and the citation, alleging that the appeal was frivolous, improvidently allowed, and improperly secured. After hearing, Judge Nordbye signed an order vacating the order of February 28, 1934, and directing that notice of appeal and assignments of error be stricken from the record, it being recited in said order that the order allowing the appeal and the citation was signed by respondent because of misrepresentations made by the petitioners.

The petition for appeal describes the judgment to be appealed from as entered December 19, 1933, and the order allowing the appeal, which was stricken, recites that: "It is hereby ordered that the plaintiff be allowed an appeal, and the same is hereby granted; and it is further ordered that a $500.00 bond, approved by this court, be furnished, and that all proceedings be stayed until the determination of said appeal." In the assignments of error filed with the petition for appeal, no error is assigned with respect to the judgment for costs.

It is earnestly urged that Judge Nordbye lost jurisdiction of the case as soon as order allowing the appeal and the citation had been signed by him. When motion was made to vacate and set aside this order, the term of court at which the order was entered had not yet expired; bond on appeal, as required by the terms of the order, had not been furnished nor approved — in fact, respondent declined to approve the bond; bill of exceptions had not been settled, and none of the papers had actually passed from the possession or control of the lower court, nor had any papers been filed with the clerk of this court. Mandamus is ordinarily a remedy for official inaction, and not to compel the undoing of acts already done, or to correct wrongs already perpetrated. It may, however, be necessary to consider the act of Judge Nordbye in vacating his order allowing the appeal, for the purpose of determining whether petitioner is entitled to a writ requiring some further action on his part.

In the circumstances here disclosed, we are of the view that respondent still retained jurisdiction of the case, and, hence, had authority to set aside the order allowing the appeal and citation. Farmers' Loan & Trust Co. v. McClure (C. C. A. 8) 78 F. 211; Goddard v. Ordway, 101 U. S. 745, 752, 25 L. Ed. 1040; Ex parte Roberts, 15 Wall. (82 U. S.) 384, 21 L. Ed. 131; Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Mackenzie v. Pease (C. C. A. 7) 146 F. 743.

In Goddard v. Ordway, supra, in an opinion by Chief Justice Waite, it is among other things said:

"The allowance of the appeal to Ordway was a judicial act of the court in term time. The order was entered on the minutes as part of what was done in the cause by the court while in session. In Ex parte Lange, 18 Wall. 163 21 L. Ed. 872, we said that `the general power of the court over its own judgments, orders, and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable.' Bassett v. United States, 9 Wall. 38 19 L. Ed. 548; Doss v. Tyack, 14 How. 297 14 L. Ed. 428. As part of the `roll of that term,' they are deemed to be `in the breast of the court during the whole term.' Bac. Abr., tit. Amendment and Jeofail, A. Under this rule, we think it clear that the court had the power during the term, at the request of Ordway, to set aside the order of allowance and thus vacate the appeal which had been granted in his favor. This was done before any adverse rights had intervened. We are unable to see how the allowance of an appeal differs in this respect from any other judicial order made in the cause. If the one is subject to revocation or amendment while the term continues so, as it seems to us, must be the other.

"There is nothing in this which interferes with the rule that where an appeal is allowed all jurisdiction of the suit appealed is transferred to this court. Here the question is whether an appeal was in legal effect allowed. It is true an order of allowance was granted and entered on the minutes of the court. So long as this order continued in operation, it bound the parties; but as it remained subject to the judicial power of the court during the term at which it was entered, its revocation vacated what had been done, and left the decree standing with no appeal allowed."

But we do not think the question of the authority of respondent to make the order is of controlling importance. The question is whether we should now require him to allow the appeal petitioned for by ordering a restitution of his former order, or otherwise. The purpose of the writ is not to establish a legal right, but to enforce a right which has already been established, and the right of the petitioner to the performance by respondent of the act which he seeks to compel must be clear and complete. Northern P. R. Co. v. Washington, 142 U. S. 492, 12 S. Ct. 283, 35 L. Ed. 1092; Re Cutting, 94 U. S. 14, 24 L. Ed. 49: Carroll County v. United States, 18 Wall. 71, 21 L. Ed. 771. As the writ may only be invoked in furtherance of the principles of justice, it will not issue to enforce or vindicate a mere abstract right, and the matter involved must be substantial.

While the petition for appeal described the judgment which was attempted to be appealed from as entered December 19, 1933, it is apparent that the date given to this judgment by petitioner is based upon his construction of the judgment dismissing the action, actually entered October 18, 1933, it being contended by petitioner that the judgment so entered did not become final until the date of the taxation of costs December 19, 1933. As has already been observed, no error is assigned with reference to the taxation of costs, but they all go to the proceedings in the trial which culminated in the judgment of dismissal, so that there can be no doubt of the identity of the judgment from which an appeal was attempted. Section 230, title 28 USCA, provides that: "No writ of error or appeal intended to bring any judgment or...